158. Riley v. California, 134 S. Ct. 2473 (2014). 159. United States v. Jones, 132 S. Ct. 945 (2012).
160. SeeRiley, 134 S. Ct at 2495. 161. Seeid. at 2489.
reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building. See United States v. Jones, 565 U. S. ___, ___ (2012) (SOTOMAYOR, J., concurring) (“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”).162
The comprehensive information contained in a connected vehicle is similar, in terms of importance to the individual, to that collected by a smart phone. Depending on the nature of the application or service, a connected vehicle can reveal extensive and intimate details about a person’s past and present whereabouts, activities, and interests. In the context of searches of a stopped connected vehicle incident to arrest of the vehicle’s driver or occupants, it is likely that courts will rely on Riley to determine that searching through digital information contained in connected vehicles similarly requires a judicial warrant. Although the Court’s opinion in Riley recognizes some exceptions to the warrant requirement, such as exigent circumstances, the fact that Riley was arrested after a car stop did not cause the Court to apply the automobile exception to warrant requirements.163 As a result, it
appears likely that judicial warrants will be required before law enforcement agents access the rich trove of information contained in connected vehicles that have been stopped by law enforcement. The fact that Chief Justice Roberts relied on and quoted from Justice Sotomayor’s concurring opinion in Jones indicates growing recognition of the sensitivity of location information. Indeed, comprehensive location information seems to be a matter of high privacy expectations for which a judicial warrant is especially needed.164
A connected vehicle seems likely to be considered comparable to a cell phone for several reasons. First, the digital data contained within a connected vehicle are typically similar to the digital files described
162. Id. at 2490.
163. In such circumstances of an arrest following a vehicle stop, the Court’s earlier decision in Arizona v. Gant, 556 U.S. 332, 344 (2009), would also substantiate the requirement of a warrant in the context of a search of a stopped vehicle and later search of connected vehicle data.
164. SeeRiley, 134 S. Ct. at 2490 (citing Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring)).
by Chief Justice Roberts as typically within a cell phone. Both reflect the lives, beliefs, communications, and past locations of their users. In Riley, the Court observed that “[o]ne of the most notable distinguishing features of modern cell phones is their immense storage capacity.” 165 The opinion also focuses on the
comprehensiveness of the information these devices often contain. Connected Vehicle Mobility Applications similarly contain a comprehensive itinerary of all of the locations visited by the vehicle and its driver, as well as other information about communications and interests of vehicle occupants. Location tracking over time was involved in Jones, and appears to be a matter of special constitutional concern to a majority of the Justices.166
It is also noteworthy that the aptness of an analogy between connected vehicles and smart phones has seemed appropriate outside the legal context. In 2011, Toyota Motor Corporation President Akio Toyoda unveiled a concept car called the Fun-Vii, by saying, “[s]ome of you might have thought to yourselves: ‘Is this really a car?’ . . . It’s like a smartphone on wheels.”167 More recently, Mark Fields, now
Ford Motor Company’s CEO, asked a provocative question at Ford’s Trends Conference 2014: “[s]ome may view [a car] as a cell phone on wheels, a web portal on wheels, or their largest wearable. If their car is more than just a car, then what’s a car company?”168
Riley did not deal with the legality of intercepting communications during transmission. In the context of connected vehicles, interception of communications from the two types of connected vehicle techonologies would be subject to different legal analyses. Communications to and from Connected Vehicle Mobility Applications are usually encrypted (at least by the telecommunications carriers). As a result, an electronic surveillance court order would appear to be required under the Electronic
165. Id. at 2489.
166. In Jones, five Justices expressed this concern. See Jones, 132 S. Ct. at 956 (Sotomayor, J., concurring); see also id. at 958 (Alito, J., concurring) (joined by Ginsburg, J., Breyer, J., and Kagan, J.).
167. Hans Greimel, Toyota Unveils ‘Smartphone on Wheels’ Concept Car for Tokyo Show, AUTOMOTIVE NEWS (Nov. 27, 2011), http://autoweek.com/article/nhra/ toyota-unveils-smartphone-wheels-concept-car-tokyo-show.
168. Lyndsey Gilpin, New Ford CEO Mark Fields Sees Car as Phone, Web, and
Wearable on Wheels, ZDNET (June 25, 2014), http://www.zdnet.com/new-ford-ceo-
Communications Privacy Act (ECPA) for contemporaneous interception of encrypted Mobility Applications transmissions.169
However, Connected Vehicle Safety Systems transmit the content of Basic Safety Messages without encryption. These transmissions can be intercepted by law enforcement without a warrant. A Basic Safety Message does not identify which vehicle is sending it. The security certificate that accompanies each Basic Safety Message to authenticate it might provide some identification. This security certificate is encrypted and protected against warrantless law enforcement interception by the ECPA.170 The odd result is that the
data in the Basic Safety Message is available to anyone who can capture it, including law enforcement agents who do not have court authorization.171 However, as a practical matter, the content of a
Basic Safety Message would be difficult to attach to other Basic Safety Messages, much less to the vehicle that transmitted it, without the encrypted security certificate that is protected from interception.
The United States Supreme Court in Jones172 decided that a law
enforcement agency’s physical attachment of a GPS device to a suspected drug dealer’s car in order to follow the suspect’s movements for a month constituted a “search” under the Fourth Amendment.173 The Court in Jones did not address the issue of
whether law enforcement was entitled, without a warrant, to follow a GPS signal from a device already installed in the vehicle, presumably with the consent of the vehicle’s owner.174 A number of the Justices
concurring in Jones expressed concern about the constitutionality of law enforcement tracking GPS signals associated with a particular
169. See 18 U.S.C. § 2518 (2012). Alternatively, a Foreign Intelligence
Surveillance Act (FISA) order under 50 U.S.C. § 1801 (2012) could authorize interception of connected vehicle communications involving foreign powers or agents of foreign powers.
170. See 18 U.S.C. § 2511 (2012) (combining with 18 U.S.C. § 2510(16), which
states that encrypted communications are not considered to be “readily accessible to the general public”).
171. Seeid. (stating that broadcast data transmissions that are “readily accessible to the general public” (as the phrase is defined in 18 U.S.C. § 2510(16)) are not subject to warrant requirements).
172. United States v. Jones, 132 S. Ct. 945, 949 (2012). 173. Seeid. at 949.
174. See id. at 955 (Sotomayor, J., concurring). Connected Vehicle Mobility
Applications would typically present this issue, since most of them include an identifiable person’s location information.
vehicle over a long period of time, whether or not the GPS device was installed by law enforcement.175
Connected Vehicle Safety Systems transmit each vehicle’s GPS coordinates every ten seconds. Were such a system required in all vehicles under, for example, a Motor Vehicle Safety Standard,176
difficult constitutional issues would arise. Both Fourth Amendment (unreasonable searches and seizures) and Fifth Amendment (self- incrimination) issues could be raised. The resolution of these issues is among the unsettled constitutional matters that the Court has not yet reached.
There is some possibility that transmissions from DSRC-based Connected Vehicle Safety Systems may not be protected at all under the ECPA on the grounds that DSRC transceivers are “mobile tracking device” transmissions, which are not protected as electronic communications.177 Subsection 3117(b) defines the term “tracking
device” as “an electronic or mechanical device which permits the tracking of the movement of a person or object.”178 How far this
definition of tracking device reaches, beyond old-fashioned “beepers,” has not yet been determined.179 If DSRC transceivers
were determined to be tracking devices exempt from the warrant requirements of the ECPA, then Fourth Amendment requirements would apply, as was the case with regard to the GPS device in
Jones.180
As noted earlier, unencrypted transmissions from connected vehicles, such as anonymous V2V Basic Safety Messages, that are “readily accessible to the general public” are exempt from the ECPA under 18 U.S.C. § 2510(16).181 As a practical matter, it seems unlikely
that federal law enforcement agencies, such as the Department of Justice or the Department of Homeland Security, would engage in comprehensive collection of the enormous quantities of anonymous V2V data. Recording a DSRC device’s V2V safety messages transmitted ten times per second amounts to 51,840,000 messages
175. See id. at 955–57 (Sotomayor, J., concurring); id. at 957–64 (Alito, J., concurring).
176. Seesupra note 57 and accompanying text.
177. Transmissions from such tracking devices (defined under 18 U.S.C. § 3117 (2012)) are not “electronic communications” governed by the ECPA. 18 U.S.C. § 2510(12)(C) (2012).
178. 18 U.S.C. § 3117(b) (2012).
179. See, e.g., United States v. Karo, 468 U.S. 705 (1984); United States v. Knotts, 460 U.S. 276 (1983).
180. Cf.Jones, 132 S. Ct. at 949.
(each with as many as forty data elements) transmitted per vehicle each day. Such recording is of course possible, but would then require massive data analysis to sort and identify particular messages of interest. Since the unencrypted content of V2V Basic Safety Messages is not identified with regard to any particular vehicle or person, the task of re-identification would be particularly difficult, time-consuming, and costly. Securing a judicial warrant to install a GPS device on a suspect’s vehicle, as required under Jones,182 would
almost certainly be less expensive and less burdensome.
The Communications Assistance for Law Enforcement Act (CALEA),183 which requires installation of law enforcement access
points (sometimes referred to as “backdoors”) in telecommunications networks,184 would apply differently to the two types of connected
vehicle technologies. CALEA does not appear to apply to the
vehicle-facing V2V DSRC communications under the FCC’s 2005 order that extended CALEA requirements to VoIP and facilities- based broadband as “telecommunications carriers” required to comply with CALEA.185 Connected Vehicle Safety Systems’ ad hoc
networks are not open to public communications and therefore are probably not required to provide CALEA solutions. As long as Connected Vehicle Safety System DSRC communications do not interface with a public network, such as the Internet, CALEA requirements would not apply.186 If Internet connections or other